Killing the
Regulations that Keep Workers Alive

Articles

In their first 100 days in power, the Trump administration
and the Republican Congress have repealed and blocked worker safety regulations
that were years, sometimes decades, in the making.

Construction is the most dangerous work environment in North America but it can be done safely when workers get the protection and training they need.

Through legislative action, executive orders and the use of the Congressional Review Act, the executive and legislative branches jointly and repeatedly shifted the cost and responsibility of keeping workers safe from corporations to workers and the public.

In total, IBEW Safety Department Director Dave Mullen said Republicans in Congress have targeted more than 225 rules and standards affecting U.S. workers.

But even more than specific regulations, Republicans have the power to achieve a decades-old dream of dismantling the entire system of workplace and consumer protections built since the birth of the labor movement and cemented into place during the New Deal.

The 2016 Republican party platform called that system “the quiet tyranny of the ‘Nanny State.’”

The Occupational Safety and Health Act, requiring employers to protect their workers from preventable injury and death, is called “exploitation.” The regulations that bar bankers from ripping people off are “burdensome.” The Environmental Protection Act’s bans against dumping toxic chemicals into waterways are called “punishing.”

Now that they have all the levers of power in their control, Republicans are delivering on their platform’s promise to “make regulations minimally intrusive” and “respectful toward the creation of new and small businesses.”

“They have been making regulation synonymous with burdens, with costs,” said Celine McNicholas, labor counsel for the Economic Policy Institute. “By only focusing on the cost to business of keeping workers safe, they ignore the cost to everyone else when workers get hurt.”

Getting rid of workplace protections doesn’t just shift the economic burden from companies to workers, it increases costs to everyone. The company saves money by not providing facemasks that filter out asbestos, but the cost of treating long term respiratory illness, premature death and disability vastly exceeds the savings to the company.

In fact, every regulation, by law, goes through a cost-benefit analysis conducted by the Office of Management and Budget. On average, McNicholas said, for $1 a regulation “costs,” it saves or returns $7.

“Someone benefits from repealing or delaying rules,” McNicholas said. “We should always ask who it is? Is it workers?”

‘Ludicrous. Meritless. Insane’

Mullen said he is most concerned, so far, about an executive order issued in January calling for executive agencies to get rid of two regulations whenever a new one is issued.

Since taking office, President Trump has issued dozens of executive orders, including some that delay or repeal worker safety protections.

When he signed it, Trump saidthe U.S. can “cut regulations by 75 percent.”

“It is ludicrous. Meritless. Insane,” Mullen said. “It’s like saying that asbestos causes cancer, but if you want to protect your workers from asbestos you have to get rid of seatbelts in their trucks and take away their fall protection.”

McNicholas is also puzzled by the order.

“If you just wanted to make things randomly worse, it would look like this order,” she said. “You would line up all the regulations and target the ones that cost the most to implement in the short term, ignore any information about the benefit they provide, and kill them.”

Silica dust is a known carcinogen commonly found at any construction or mining site where concrete is sawn, ground, milled, or hammered. In other words, nearly all of them.

Attempts to reduce exposure to silica have been ongoing for decades, Mullen said, and OSHA has been in the process of issuing new regulations since at least Obama’s first term. The final rule, which was set to go into effect in June, came after years of consultation with industry, labor and health experts.

Trump, however, delayed implementation for three months and reopened the rule for additional guidance.

The National Association of Home Builders lauded the order, saying it was “pleased.”

“There is no reasonable justification for delaying this rule. It has been studied to death and that is what is at stake here: 600 lives, every year. From dust. Six hundred construction workers every year will leave behind husbands and wives and kids and communities that rely on them from completely preventable deaths. For what? To save a few hundred or few thousand bucks on gear,” Mullen said. “It’s [baloney]. Complete [baloney.]”

In March, Trump also signed an order that requires the head of each federal agency to appoint a regulatory reform officer to identify existing regulations for replacement or repeal. No directives have been issued about how they would be selected or what qualifications they would need to have.

“Think about how complicated some of the safety issues are in the jobs our members do. Construction sites. Power plants. Shipyards. Old buildings, new buildings. Will this person, appointed by a president committed to gutting safety regulations, look out for us? Even if they wanted to keep workers safe, will they have the knowledge to do it?” Mullen said. “We have no reason to think they will. We just don’t know.”

In late April, Trump also launched another front on his battle against workplace and consumer protections when he chose Neomi Rao to run the Office of Information and Regulatory Affairs.

A formerly low profile, technical office buried in the Office of Management and Budget, OIRA ensures regulations issued by executive agencies align with best practices and technical standards. They also issue the government’s official assessment of how much a regulation will cost and what its benefits will be.

In the past, the cost-benefit analysis was a technical question, left to politically neutral civil servants who were experts in their field. But Rao is not a technical expert, she is a law professor and former clerk to Supreme Court Justice Clarence Thomas.

Rao has been a vocal opponent of the existing regulatory system, well outside the mainstream of legal opinion in even conservative circles, McNicholas said.

As the Washington Post reported, “In past administrations, the OIRA administrator has played the role of a check on ideology, but with Rao and many department chiefs all pushing for deregulation, OIRA’s role as objective analyst could be compromised.”

The Death Penalty for Safety Regulations: The Congressional Review Act

At a press conference in February, Senate Majority Leader Mitch McConnell said, “We’re directly attacking the over-regulation issue, thanks to the Congressional Review Act, and plan to take as many of these job-killing regulations off the books as possible.”

Rules protecting workers from silica and beryllium have been delayed and employers that violate the law have new protections under unified Republican rule.

The CRA is one of the most powerful, yet least well-known tools, at the government’s disposal to attack worker protections. It gives Congress the authority to repeal any regulation issued in the last 90 “session” days of the previous administration. The process is rapid, cannot be filibustered, and if successful, it bars the executive branch from issuing a “substantially similar” regulation until a new law is passed expressly authorizing it.

Unlike an executive order, which can be easily reversed by the next president, regulations repealed under the CRA are gone until the opposition party takes back both the White House and Congress.

“It is the death penalty for regulations,” Mullen said. “It is more than weakening a rule. It is more than repealing it. It’s a black hole. They disappear and cannot reappear.”

Congress can target rules passed by the Obama administration at least as far back as May 2016 and they had until mid-May to act.

Before Trump took office, the CRA had only been used once, to repeal ergonomic safety standards issued in the last months of President Bill Clinton’s administration.

Since Trump took office, however, the CRA has been used successfully at least 13 times, at least four of which directly affect worker protections. The U.S. Senate is considering two more resolutions.

Of those regulations that have already been repealed under the CRA, McNicholas and Mullen identified many that clearly leave IBEW members more vulnerable, on the job and after they retire.

This rule required employers to keep records of on-the-job injuries for five years, replacing the previous six-month standard. The new rule improved the chances that Occupational Safety and Health Administration inspectors investigating incidents would find previous violations they may have missed as well as patterns of negligence.

By revoking the five-year standard, the Trump administration is imposing a kind of corporate memory loss, but only about workplace injuries. Companies are required by the IRS to keep tax records for at least three years, seven if they claim certain kinds of losses.

“There is no cost in keeping paperwork you already created. They don’t have space on their computers for another document?” Mullen said.

The President also signed the CRA repeal of the Fair Pay and Safe Workplaces rule which prevented contractors that cheat their own workers or violated basic safety standards from getting additional contracts with the federal government.

McNicholas said the repeal sets a new, lower standard, for federal contractors. Instead of rewarding companies that do right by their workers -- or at the very least staying neutral-- the federal government is now hamstringing the good guys.

“It says ‘This is how we expect you to bid: low cost, low safety, low respect for workers,’” McNicholas said. “Severe injuries? No problem. Deaths? No problem. This is now the standard operating procedure. It’s what makes you competitive for federal money.”

Congressional Action: Highway to the 19th Century

Despite the delays, repeals and orders from the White House, the power to dramatically change workplaces for the worse lies down Pennsylvania Avenue with Congress.

Several bills are under consideration in the House of Representatives that all claim to update the entire regulatory system that has been built up over the last 100 years.

“Whenever members of Congress start talking about modernizing regulations I put my hand over my heart and check for my wallet,” Mullen said. “Based on what these bills actually do, modernizing looks an awful lot like making the future look like the past.”

One bill would require congressional approval of “major” regulations, giving regulated corporations even more opportunities to turn the regulatory process to their interest and not the public’s.

Another targets rules for repeal based purely on their cost of implementation, ignoring any benefit -- no matter how large-- the regulation provides.

Similar in mission, but possibly even larger in scope, is the Regulatory Accountability Act, which would fundamentally alter the way regulations are issued across the federal government. It would require agencies to put compliance cost considerations above any other, including size of return or public benefit, even saving lives. It would also require the agency to analyze “any substantial alternatives” submitted by “interested parties,” an invitation to paralyze the regulatory process if not hand it over completely to employers.

Each of these bills, McNicholas said, give regulated entities, people or corporations, more opportunities to bend the law their way outside the public hearing process that unions and public interest advocates will be restricted to.

“Anyone without the money to hire lobbyists or who can’t match campaign donations, where do they turn?” McNicholas said.

Even with Republicans in control of Congress and the White House, it is impossible to know what, if anything, will pass. But, Mullen said, the lesson to all IBEW members is watch out for one another.

“For now, the reality is, safety has to be in each individual’s hands. It is not a cliché anymore: your first, second and third job is to get home safe and whole,” Mullen said.

Candidate Trump had a message that was more appealing to working class voters, including many union members, than the traditional pro-corporate message of the Republican Party.

The evidence of the first few months shows that President Trump appears to be a more traditional Republican than he let on.

“Reading his campaign speeches is a reminder of how hollow the promises he made are,” McNicholas said. “It was all talk before. It is his actions we have to watch now.”